Durham man fights child porn charge

Defence wants evidence tossed over alleged Charter breaches

Gavel

OSHAWA -- A judge will rule soon on the legality of a police investigation that led to a child porn charge against a man caught two years ago intercepting wireless Internet signals on an Oshawa street.

If the Charter motion filed on behalf of Tyler Perkins is successful, it's likely the charge of possession of child pornography he faces will be tossed.

Officers arrested Mr. Perkins on a charge of telecommunications theft after he was found operating a laptop in his car on a residential street at 2:25 a.m. Sept. 14, 2010, court heard. The charge was laid after Mr. Perkins explained he had no Internet service at home, and was tapping into unsecured wireless accounts.

Police seized the laptop Mr. Perkins was using, as well as a number of other electronic devices found in the car. An examination of the laptop some weeks later resulted in the discovery of child pornography, Superior Court Justice Jane Ferguson heard.

Ms. Penman has questioned officers on why they investigated Mr. Perkins to the extent they did, and why the items found in the car were seized.

One of the first cops on the scene that morning, Constable Mike Marriott, said he found it "odd" to find a man working on a laptop on the darkened residential street. He said he became more suspicious of Mr. Perkins after he ran a background check.

"It came back with a lengthy record with numerous sex-related offences," the officer said.

The record included charges of sexual assault, voyeurism and child pornography offences, court heard. Mr. Perkins was on probation at the time of the incident.

Other officers testified the laptop and other equipment, including battery chargers, cables and an external hard drive, were seized as potential evidence to support the charge of telecommunications theft.

It wasn't until November 2010, when an e-crimes officer examined the laptop, that evidence of child pornography was discovered, Justice Ferguson heard. Detective Constable Michael Russell testified he was doing an analysis of the computer's hard drive when an image of a naked child opened up.

He testified that although the search warrant for the computer was dated Sept. 15, he saw no issue with conducting the forensic examination in November.

"I didn't have any concerns with it," he said. "My understanding was that by bringing the computer down to my office (on Sept. 15), the search warrant had been executed."

The hearing continues in Oshawa.

Jeff Mitchell is the justice reporter for Metroland Media Group in Durham Region, Ontario.